Legal Questions

There are some frequently asked questions below the form.

Frequently asked legal questions:

What do I do if I have a car accident?

If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any. The type of accident and the cause of the accident may affect whether you are entitled to compensation,

What does a Personal Injury Lawyer do?

A personal injury lawyer is the one who provides lawful representation to those who allege to have been injured, psychologically or physically, due to the result of the negligence or wrong doing of another person, a company, a government agency, or any other entity.

What Constitutes Medical Malpractice?

Medical Malpractice Medical malpractice takes place when a medical patient faces some kind of emotional and physical injury or unfair death as a result of wrong doing or inaction by a medical professional or a facility. The principles and set of laws for medical malpractice vary by country and authority within the countries.

What is a Probate Estate?

The term probate estate usually means any property subject to the authority of the probate court. Assets that are distributed outside the probate process are part of a person’s non probate estate. Probate is the process of transferring legal title of property from the estate of the person who has died to his heirs under the supervision of the court.

What is a Revocable Trust?

A revocable or living trust is a written document which becomes effective while you are living, unlike a will which takes effect after your death. A trust can be set up to manage your assets for your benefit during your lifetime, or in the event of your illness or incapacity.

After your death, the trust document can provide for the distribution of any remaining assets to those persons or entities you have chosen or provide for their continued management by a trustee for many years, with ultimate distribution as you direct.

Who Can Recover in a Personal Injury Case?

Any person, child or adult, is entitled to recover damages in a serious personal injury case as long as they can prove that another person or entity is at fault and caused their injury. One does not need to be a resident of New York or even a resident of the United States to qualify.

In cases in which the victim is a child under 18 or incompetent, the law provides special protections and requires that a guardian be appointed for the purposes of the litigation. That guardian then oversees the case and, along with the Court, approves any settlement.

The settlement funds are then either put into a protected trust account or paid over time to the victim until he or she becomes a competent adult, unless the settlement proceeds are needed earlier to cover health expenses.

The spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

Does There Have to be Fault to Recover Damages for Personal Injury?

In New York, to recover in a personal injury lawsuit, a person must establish the fault of another person, entity or corporation. The wrongdoing for which a person can recover can either be negligent or intentional. In certain cases, such as an injury caused by a defective product, no fault need be proven.

Can a Plaintiff Recover in a Personal Injury Case Even If They Are Partially at Fault?

A plaintiff can recover even if he or she is also at fault. New York is a comparative negligence State in which a negligent plaintiff can recover damages; however, their monetary recovery is reduced by the amount of their fault.

For instance, if a court or jury finds that a plaintiff’s damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.

What Damages Are Recoverable in a Personal Injury Case?

In a personal injury case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

Should Experts Be Utilized in Personal Injury Cases?

In almost every serious personal injury case, expert witnesses are utilized to prove fault and damages. Good law firms generally retain many different types of engineers and liability experts in cases where there is disputed liability (i.e., fault).

Also, if there is an issue as to whether an accident caused serious personal injury, the attorney should retain biomechanical engineers and biomedical engineers to prove that the traumas plaintiff was subjected to was capable of causing a severe bodily injury.

Further, it is generally important to retain expert physicians and psychotherapists to describe the details of an injury to a judge, jury, insurance adjuster or defense attorney. The use of highly qualified experts can be expensive and add to the cost of the case; however, it generally leads to a more likely and higher recovery on behalf of the plaintiff.

Insurance Coverage.

Unless the defendant in a case is a large corporation or an individual with significant assets, insurance coverage becomes particularly important. Although a plaintiff can sue an individual or company for more than the insurance coverage, collecting in such a case can sometimes be very difficult.

Unfortunately, many people are uninsured or carry very minimal insurance; therefore, sometimes a victim has to look to his or her own insurance policy to provide or supplement insurance proceeds.

In the case of a motor vehicle or pedestrian accident, this will result in an uninsured or underinsured motorist case where the plaintiff can sue his or her own insurance company up to the insurance policy’s limits.

Further, this is a reason why there needs to be a thorough investigation to determine if there are other potential defendants who are better able to pay a plaintiff’s damages.

If a driver in an automobile does not have his or her own insurance policy, he or she is not entitled to recover damages for pain and suffering against the other driver.

Punitive Damages.

If a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff.

The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals.

How Soon Must a Personal Injury Case Be Brought After an Accident?

Although there are a few exceptions, generally speaking a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury.

However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

Investigation in a Personal Injury Case.

The more serious the injury, the more important it is for a plaintiff attorney to perform a thorough investigation.

Whether the injury is caused by negligent or intentional misconduct, an early investigation should be performed, if at all possible, to establish liability, causation and, sometimes, damages.

If the personal injury was caused by an accident, the accident scene must be carefully investigated, whether it involves a car accident, construction accident, dangerous condition of property, defective product, pedestrian accident, bicycle or motorcycle accident.

Whatever physical evidence can be maintained, should be maintained. For instance, if a serious bodily injury occurred in a motorcycle accident, the motorcycle should be maintained in the same condition as it was found immediately after the accident.

The accident scene should be combed for any evidence which gives any hint as to how the accident happened. Videos and photos should be taken documenting the condition of the injury and the scene of the injury.

Accident scenes can change dramatically over time; therefore, it is important to document what the scene was like at the time of the accident as soon as possible after the accident.

Witnesses should be contacted and statements should be taken from favorable witnesses. Records should be obtained and searched thoroughly.

In a serious bodily injury case, the wrongdoer who is most obviously responsible for the injury may not have enough insurance or assets to cover the plaintiff’s losses. Therefore, the investigation should include an explanation of other potential defendants who were at fault for causing plaintiff’s injury.

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